Legal Analysis of the Directive and the Regulations on Access to Information by the Court of Bosnia and Herzegovina

BIRN BiH

“In July 1995, in his position as a President of Republika and a supreme commander of the army and police, and as part of the organized criminal enterprise together with S.M and others in their positions as commanders and chief officers of the army and police of Republic, the accused R.K. incited, ordered and executed acts of genocide in municipality S., resulting in the death of approximately 8,000 people: E.K., A.B, etc.“

This is how, once the latest directive on the anonymization of court verdicts of the Court of Bosnia and Herzegovina (Court of BiH) comes into force, a hypothetical judgment against Radovan Karadžić would look like. Karadžić is, of course, indicted for genocide in Srebrenica as president and supreme commander of Republika Srpska army and police while acting as part of an organized criminal enterprise together with Slobodan Milošević and others in their positions as heads of the army and police of Republic of Serbia.

Yet no one reading the above hypothetical verdict would be able to determine where exactly the genocide took place and which institutions were envolved, and the victims would be eventually erased from the memories of the general public and history.

The Directive of the Court of Bosnia and Herzegovina (hereafter the Directive) on “The Methods of Anonymization of Court Verdicts, Audio/Video Records of Sessions and Other Informational Content“ of March 21, 2012, prescribes the rules of anonymization. According to the Directive (para. II), personal names of all involved will be replaced by initials or initials with numbers in the case of multiple people.

The names of private legal entities will be replaced by the first letter of the name of the company followed by an abbrevitation signifying legal status (for example, “Klas Liability Limited“ becomes “K. LLC.“), while the titles of public institutions will be replaced by a generic title for the institution (for example, “Municipality of Srebrenica“ becomes “the Municipality S.“ while Ministry of Justice becomes “the Ministry“).

In another sweeping move, the Regulations of the Court of Bosnia and Herzegovina (hereafter the Regulations) on “Access to Information under Court Control and Co-operation of the Court with the Community“ of March 20, 2012, de facto severely restricts access to information about the trials either online, in video or in audio form. The Regulations prescribe time limits and the procedures for deciding on the access to information applications made by the press or interested parties.

The decision in almost all cases is made by the judge presiding over the trial or the presiding judge in the case of chamber trials. This takes the form in which the proper transfer of information to the public or the parties becomes impossible and untimely, therefore resulting in indirect censorship. For example, Article 13(3) of the Regulations allows, in urgent cases, for the release of audio and video records of parts of the trial totalling just ten minutes, and only after the material has been anonymized and edited by the trial judge or in the case of chamber trials, the presiding judge.

It is important to note, nevertheless, that anonymization is not an entirely uncommon judicial practice amongst the member countries of the Council of Europe in cases of need; and the European Convention on Human Rights and Fundamental Freedoms (hereafter the Convention) in Article 6(1) recognises that public and the press may be excluded from the trial for specific reasons.

However, sweeping anonymization as ordered by the Directive and the Regulations of the Court of BiH appears to be an odd example which runs counter to the practice of the ECHR and international law, especially taking into account that they will be applied to the coverage of trials for the gravest crimes, such as war crimes, “ethnic cleansing“ and genocide trials.

Neither the Directive or the Regulations gives reasons for the anonymization that are in line with exceptions provided for in Article 6(1). Rather, as the legal grounds for the Directive and Regulations, the Court cites Article 11(g) of the Law on Court of Bosnia and Herzegovina (“Offical Gazzete of BiH 49/09,“ as ammended), which regulates the responsibilities of the President of the Court and gives powers to administer the work of the court personnel to the President of the Court. Also cited is Article 1(3) of the Rules of Conduct of the Court, which prescribes that the President of the Court can pass specific internal regulations regulating rights and duties of the court judges.

To further complicate the vagueness of the legality, media have reported that the introduction of both the Directive and the Regulations was partially prompted by the Information of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (HJPC, a quasi-judicial institution regulating the work of all courts in Bosnia and Herzegovina) which was passed to all courts in BiH.

The Information body previously communicated the Opinion of the Agency for the Protection of Personal Data of BiH (an administrative agency) regarding the publication of personal data of trial participants. Neither the Information or Opinion are available on the webpages of the HJPC or the Agency.

As noted before, anonymization can sometimes be justified, especially in cases when there are sufficient reasons to assume that the premature disclosure of information might lead to undue pressue on participants in the trial or might even subject participants to various types of social ostracism, undue media pressure or harrasment.

But, the Directive and the Regulations if applied in cases of war crimes, crimes against humanity and genocide would, at the very least, violate a number of constitutional and international legal provisions. Firstly, the application would violate Article 10 (freedom of expression) of the European Convention on Human Rights which, according to the Annex IV of the Dayton Peace Agreement (the Constitution of Bosnia and Herzegovina), is directly applicable in BiH and takes precedence over any other law (see Article II(2) of the Constitution).

Secondly, the Directive and the Regulations violate a number of international conventions which are parts of the Constitution (see Annex I of the Constitution), but in particular, Article 2 of the International Covenant on Civil and Political Rights (ICCPR), which guarantess effective remedy for victims of crimes.

Finally, the Directives and the Regulations defeat the whole purpose of the existence of the Court of Bosnia and Herzegovina in its part-role as a war crimes court charged by the International Criminal Tribunal for Former Yugoslavia (ICTY) to prosecute war crimes committed on the territory of Bosnia and Herzegovina with the aim of revealing the truth about the conflict, preventing the future perpatration of similar crimes and therefore providing a remedy for victims and contributing towards reconciliation in the region.

In terms of violation of the European Convention on Human Rights, the Directive and Regulations violate the Article 10 of the Convention, which guarantees the freedom of expression especially of the press and NGOs, which in this case also means war victims' as well as human rights organisations that serve as public watchdogs.

The preferential treatment of the press even in stages preceding the trial, such as investigation, where secrecy and anonymization are a regular occurance, has already been recognized by the ECHR back in 1990 in Weber v. Switzerland (judgment of 22 May 1990, Series A No. 177). There, the ECHR held that judicial proceedings conducted in camera and having resulted in the conviction of a journalist for breaching, during a press conference, the secrecy of an investigation for a pending libel action, is a violation of Article 10. More importantly however, in a recent case HCLU (Hungarian Civil Liberties Union) v. Hungary (judgment of 14 July 2009), the ECHR strongly affirmed the right of the press and NGOs to access state-related documents and to receive information related to their work.

In that case, after the Hungarian Constitutional Court refused to release a complaint made to the Court by a Member of the Hungarian Parliament requesting the constitutional scrutiny of some recent amendments to the Hungarian Criminal Code, the ECHR found that the “Constitutional Court’s monopoly of information thus amounted to a form of censorship”, and concluded that the interference was not necessary. Paragraph 27 of this judgment is applicable verbatim to the Directive and the Regulations of the Court of BiH:

“In view of the interest protected by Article 10, the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information. For example, the latter activity is an essential preparatory step in journalism and is an inherent, protected part of press freedom... The function of the press includes the creation of forums for public debate. However, the realisation of this function is not limited to the media or professional journalists. In the present case, the preparation of the forum of public debate was conducted by a non-governmental organisation.

The purpose of the applicant’s activities can therefore be said to have been an essential element of informed public debate. The Court has repeatedly recognised civil society’s important contribution to the discussion of public affairs... The applicant is an association involved in human rights litigation with various objectives, including the protection of freedom of information.

It may therefore be characterised, like the press, as a social “watchdog”... In these circumstances, the Court is satisfied that its activities warrant similar Convention protection to that afforded to the press.”

It does not take a great leap of imagination to see that organisations representing vicitims of war or journalists who cover war crimes, as well as relevant NGOs fall under the scope of this decision and related precedents.

As already noted, the Directive and the Regulations also violate a number of international conventions which are parts of the Constitution (see Annex I of the Constitution), but in particular Article 2 of the ICCPR, which guarantess effective remedy for victims of crimes. As the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Resolution adopted by the General Assembly A/RES/60/147 on 16 December 2005 (Van Boven/Bassiouni Principles), relying in part on Article 2 of the ICCPR, recognised in para. VII, section 11 (c), victims' rights to remedies include, among others, access to relevant information concerning violations and reparations mechanisms.

Finally, the application of the Directive and the Regulations would defeat the whole purpose of the trial for war crimes, crimes against humanity and genocide. The idea behind the founding of the international and national war crimes tribunals is – or at least it should be - to provide a remedy for victims by granting them full access to information regarding the death and suffering of their loved ones and thereby, at least partially, help restore their dignity and give them a voice in the process.

This would also work towards preventing future repeats of such crimes, specifically genocide and crimes against humanity, by educating the wider public about the events and to shed a light on truth about the past. The application of the Directive and the Regulations by the Court of BiH in its present form defeats this intent and is a clear example of a self-inflicted wound. After all, the judgment stating “the Holocaust was organized by A.H., his commanding army and the ministry in municipalities A., T., D and others“ is rather meaningless.

Asim Jusić, PhD, is a lecturer of comparative and international law at American University in BiH.